UD13/2013

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD13/2013

CLAIM(S) OF:                                          

Ann Marie Ryan                                                              

against

UPC Communications Ireland Limited

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. P. Wallace

Members:     Mr T. Gill

                     Ms H. Henry

heard this case in Limerick on 24 September 2014

Representation:

_______________

Claimant(s):

Mr Tiernan Lowey BL instructed by Mr. Andrew D'Arcy, Andrew D'Arcy & Co, Solicitors, 22a Henry Street, Limerick

Respondent(s):

Ms. Mairead McKenna BL instructed by Upc Legal Department, East Point Business Park, Dublin 3

The determination of the Tribunal was as follows:-

Raising a preliminary point, the respondent’s representative said that the Form T1A unfair dismissal allegation had been received on 7 January 2013 and, therefore, had not been received within twelve months of the end of the claimant’s employment. It was submitted that the claim could not proceed because it was not received within six months or even twelve months. It was anticipated that the claimant’s representative might submit that the claimant’s internal appeal had to end. The respondent’s representative cited case law against this.

The respondent’s representative said that the claimant had been dismissed with immediate effect on 18 October 2011 and that the claimant’s solicitor had confirmed this. The respondent’s objection was that the claim to the Tribunal was not in time and that there were no exceptional circumstances by which the Tribunal could hear it given that the claim to the Tribunal was even outside twelve months from the dismissal.

The claimant’s representative submitted that there was no definitive Irish authority on this point regarding the date of dismissal where there was an appeal as part of the contract. He distinguished one case cited and said that the respondent’s representative had cited English Case Law. It was accepted that the claimant had been dismissed on 18 October 2011 but an appeal was lodged on 20 October 2011 although it appeared that there was a delay in the respondent receiving it. It was submitted that the respondent’s appeal procedure was ambiguous, that it should say that dismissal was pending appeal and that the Tribunal should uphold the right of an employee to exhaust an internal appeal.

In September 2012 an appeal outcome issued and in January 2013 an unfair dismissal claim to the Tribunal was lodged. It was thought on the claimant side that the internal appeal had been a stay on dismissal. The claimant’s representative said that Section 8 of the appropriate unfair dismissal statute referred to the “relevant” dismissal, that it was for the Tribunal to say which dismissal was relevant and that the claimant should not be disentitled. It was submitted that the contra proferentem rule must apply to any ambiguity. The claimant had thought the appeal acted a stay on the dismissal.

The respondent’s representative submitted that the purpose of the unfair dismissals legislation was to promote a speedy and effective remedy within twelve months and that the claimant had been guilty of significant delay. She employed a solicitor in October 2011 but the internal appeal sent/lodged was not received by the respondent until April 2012. The claimant had been dismissed with immediate effect but a contract could be brought back to life by an appeal. An employee could be reinstated. There would be no prejudice to the claimant if an unfair dismissal Form T1A were lodged but a claim form had to be put in. The respondents representative said there was an exceptional delay significantly contributed to by the claimant. Even after the internal appeal termination in September 2012 the unfair dismissal claim was not sent to the Tribunal until January 2013. This was well outside the twelve months. Given that the claimant had been dismissed in autumn 2011 it was submitted that September 2012 (when the internal appeal ended) was not a valid dismissal date. The claimant had received a P45 in late 2011. It was a nonsense to say that she retained an implied right to initiate an unfair dismissal claim to the Tribunal so much later. There was no ongoing relationship between the parties.

Regarding the internal appeal the Tribunal was told that CSX (the claimant’s solicitor) had written to the respondent but that the respondent had not received it and that there was a copy of this on the claimant’s file. The respondent’s representative asked for proof of posting and said that when the respondent issued a P45 (with one month’s notice) that was the trigger.

When the Tribunal asked why the internal appeal took so long it was told that the claimant, CSX and the respondent had been unavailable to conclude it sooner. The claimant made a data protection request and only then heard that the respondent had not got the 20 October 2011 appeal. CSX could give evidence about this. It was submitted on behalf of the claimant that nothing suggested that the respondent had been prejudiced, that there was a question of fairness and that no Irish authority had determined this point. It was submitted that the English law on the subject was unfair and wrong and did not refer to the “relevant” dismissal such as could lead to the conclusion of an internal appeal being found to be the end of an employment. An employee could not be expected to forego rights.

The respondent’s representative did not accept what had been said by the claimant’s representative and asked how this explained the delay from October to January. It was not accepted that the respondent had a sparse appeal process.

The claimant’s representative undertook to provide submissions to the Tribunal and the respondent within two weeks whereupon the respondent’s representative would have two weeks to reply.

Determination of Preliminary Issue:

Having carefully considered this issue and the submissions made, the Tribunal finds that under the Unfair Dismissals Acts, 1977 to 2007, that the Claimant is entitled to proceed with her claim and is not precluded from prosecuting same on the basis of the following ;

1. The Respondent should have dealt with the initial hearing of dismissal and the appeal arising from same and the issuing of the decisions in relation to same expeditiously, which was not the case here, and more especially in relation to the hearing of Appeal. In consequence the Tribunal finds that the delays which arose in the conduct and completion of such processes by and large lay at the feet of the respondent and were contrary to Claimant’s entitlement to natural speedy and effective justice.                                                                                                                    
2. The Terms of Employment were silent on the implications and effectiveness of the dismissal once issued and that when an appeal was lodged that this did not act as a stay on such dismissal, then in that event, the Tribunal believes this led to lack of clarity and in consequence created ambiguity which resulted in the Claimant believing that her dismissal was stayed pending the outcome of the appeal. The Tribunal support her view.

The Tribunal finds that the Claimant has lodged her claim with the Employment Appeals Tribunal in time and directs the case proceed to hearing on the substantive issues.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

            PATRICK WALLACE

                 CHAIRMAN)